Please enable javascript to view this page in its intended format.

Queen's University
 

Zhang v University of Western Ontario [2012] OH No 5723

Can a student get expelled for bullying?

Facts

The applicant, Mr. Zhang, was a first year law student at the University of Western Ontario.  In 2007, the dean of the faculty of law began receiving complaints from his fellow students and professors about his classroom conduct and the contents of his Facebook.  In class, he asked questions involving fellow students and which were “unduly gruesome”, “macabre frightening” and “graphic”.  He wanted to know, for example, if he would be found guilty of murder or manslaughter if he purposefully placed an intoxicated fellow student in a position where she would choke to death on her own vomit.  He would also, in class, watch videos about terrorist and suicide bombers or read texts about these subjects.  His Facebook, where he called himself “Dr. Frank N. Stein”, contained troubling posts referring to going on killing sprees, eating babies, being “free to observe torture without criminal liability” and learning how to get away with murder in law school.

The Dean “exercising the powers authorized by the [University of Western Ontario] Code [of Student Conduct]” (13), temporarily suspended the student from campus pending a psychiatric evaluation. The psychiatrist found that the student met some of the criteria for schizoid personality, but “possessed little, if any, risk to the safety of University student and academic body” (14).  There were, however, “a few issues in his personality that merited follow-up” to eliminate the possibility that they would eventually “develop a higher risk for violet acts” (14) 

The student met with the Dean and Campus Security to discuss conditions under which he could return to the university.  The University made it clear that the student’s Facebook postings were “part of the behavior that gave rise to the suspension by the Dean” (15). An exchange of emails between the student and the dean referred to those conditions, the consequences of not meeting those conditions and the student’s willingness to comply.  Dean allowed the student to return to law school at the end of November.

 On March 3, 2008 another incident occurred.  The student posted (in English then in German) the following message and image on his Facebook (paras 19 and 20 in the decision). 

I have no tolerance for subhuman filth. Their days are numbered and they will be shown no mercy, because they are worth nothing.

Besides the posting is a photograph of a young soldier holding a machine gun.   

A frightened and shocked friend (and fellow-student) of Zhang reported the posting to the University when he discovered it on Facebook following an argument in which Zhang had accused him of being subhuman (i.e. of having sexual relations with people of colour).  On March 20th, the dean expelled Zhang from law school. On Oct 1, 2008, he had a hearing before the University Discipline Appeal Committee[1] which denied his appeal in a 7-page single-spaced report and justified his expulsion based on powers authorized by the student code of conduct which prohibits “any assault, harassment, intimidation, threats or coercions” and “knowingly creating a condition that endangers the health, safety or well-being of a person”.

Zhang appealed to the Court from the decision of the University Discipline Appeal Committee with the following issues:

Issues

1)      Is the decision of the appeal committee in violation of the student’s constitutional right to free speech as guaranteed by the Canadian Charter of Rights and Freedoms, and section 6 of the Code of Student Conduct

2)      Did the University breach its duty of procedural fairness to Mr. Zhang with respect to the informal agreement into which he entered with the Dean?

3)      Did the University of Western Ontario breach its duty of procedural fairness to him with regard to his previous disciplinary record

4)      Does the Code of student conduct extend to off-campus activity

5)      Did the University fail to provide him with adequate disclosure in order to make the case against him

Decisions

1)      No

2)      No

3)      No

4)      Yes

5)      No

Reasons

1)       “We have no doubt whatever about the correctness of the decision of the appeal committee. This court is mindful of the historical importance of encouraging free speech on university campuses, and rigorously defending the right of students to debate difficult and often highly unpopular issues with passion. However, free speech has limits, including the making of threats and defamation of character. Uttering threats is proscribed by the Canadian Criminal Code. Defamatory libel is a serious tort. In the instant case, the pane found after hearing viva voce testimony from Mr. R that he felt personally threatened by the Facebook posting of Mr. Zhang. In so finding, the panel was right to conclude that the applicant was not protected by his professed right to free speech.” (35)

2)      “The complaints of procedural unfairness cannot be sustained. Clearly, Mr. Zhang’s previous disciplinary record was integral to the issue of whether Mr. Zhang had breached his agreement with the Dean. With respect to the agreement itself and the fact that it was merely confirmed by emails, the record establishes that Mr. Zhang fully understood the terms upon which he was permitted to return to law school and those terms were clear and unambiguous. As to his complaints with respect to disclose, Mr. Zhang was given a fair, effective and real opportunity to know the case against him: Mikkelsen v University of Saskatchewan, 2000 SKQB 45. We find that the procedures followed by the University throughout its dealings with Mr. Zhang were fair and reasonable. It could never e=be asserted that the procedures adopted were “manifestly unreasonable” (37)

3)      See #2

4)      “Regarding Mr. Zhang’s complaint that the University should not have the authority to consider his off-campus activities, it has been held in Pacheco v. Dalhousie University 2005 NSSC222that Universities have the right to exert control over the non-academic behavior of students because they have a duty to protect members of the University community. See also Re. B and W (1985), 52 OR (2d) 738 at 743 (H.C.J.). The Student Code of Conduct expressly states that it applies to off-campus conduct. The provision is neither vague nor overbroad. It places ascertainable limits on the University’s right to regulate off-campus conduct. In our view, the provisions contained in the Code are reasonable. /The Code states that it applies to off-campus conduct if that conduct has, or is reasonably seen to have, an adverse effect on the rights of the university members to “use and enjoy the University’s learning and working environments”. The applicant submits that the word “enjoy” is undefined, highly subjective and over-broad. We disagree. The word “enjoy” is easily understood and must include the prohibition of conduct that is threatening to the safety and security of a student, as directed against Mr. R. 

5)      See #2



[1] During his hearing on Oct 1, 2008, Zhang argued that the dean “lacked authority to make a finding of misconduct or impose a sanction against him and that the finding of misconduct and sanction imposed were unreasonable or unsupportable on the evidence. He submitted his Facebook postings were off-campus and therefore beyond the reach of the University’s authority, and that in any event, his posting was protected by this right of free speech guaranteed by the Canadian Charter of Rights and Freedoms.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000